Phillips v Tobias Partners Pty Ltd - [2013] NSWSC 496

Supreme Court

New South Wales

Medium Neutral Citation: Phillips v Tobias Partners Pty Ltd [2013] NSWSC 496
Hearing dates: 2 May 2013
Decision date: 03 May 2013
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Grounds of appeal and cross appeal rejected. Applications for leave to appeal refused.

Catchwords: Appeal from Local Court - construction of agreement to supply architectural services - entire obligation - staged performance of work - leave to appeal from costs decision.
Legislation Cited: - Building and Construction Industry Security of Payment Act 1999
- Local Court Act 2007 - s 39, s 40
- Uniform Civil Procedure Rules 2005 - r 14.19
Cases Cited: - Baltic Shipping Company v Dillon [1993] HCA 4; 176 CLR 344
- Cutter v Powell (1795) 6 TR 320; 101 ER 573
- Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317
- Jennings v Credit Corp Australia Pty Ltd [2000] NSWSC 210; 48 NSWLR 709
- Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221
- Sayed v Deng [2012] NSWSC 851
- Steele v Tardiani (1946) 72 CLR 386
Texts Cited: John W. Carter, Contract Law in Australia, 6th ed (2013) LexisNexis Butterworths
Category: Principal judgment
Parties: Edwin Phillips (Plaintiff/Cross Defendant)
Tobias Partners Pty Ltd (Defendant/Cross Claimant)
Representation: Counsel:
R.I. Bellamy (Plaintiff/Cross Defendant)
S.A. Benson (Defendant/Cross Claimant)
Solicitors:
Bottrill Van Kempen Solicitors (Plaintiff/Cross Defendant)
Lenehan & Co (Defendant/Cross Claimant)

File Number(s): 2012/278149
Decision under appeal

Jurisdiction:

9109

Date of Decision:

2012-08-14 00:00:00

Before:

Atkinson LCM

File Number(s):

2012/278149

EX TEMPORE Judgment

This is an appeal by Mr Edwin Phillips from a decision of the Local Court awarding judgment against him in favour of the defendant in this Court, Tobias Partners Pty Ltd ("Tobias Partners"), in the amount of $23,512.00 with interest.

Tobias Partners was the plaintiff and cross defendant in the proceedings in the Local Court. Mr Phillips was the defendant and cross claimant. Mr Phillips was also ordered to pay 75 percent of Tobias Partners' costs in the Local Court. Given that the proceedings appeared to have involved eight hearing days, substantial interlocutory disputes and the preparation of detailed written submissions on a number of different topics, it can be expected that those costs are substantial.

The scope of an appeal to this Court from the Local Court is governed by ss 39 and 40 of the Local Court Act 2007, which provide:

"39 Appeals as of right

(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.

(2) A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness.

40 Appeals requiring leave

(1) A party to proceedings before the Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWSC 496
Decision Date: 03 May 2013

CaseChat Overview and Summary

The case of Phillips v Tobias Partners Pty Ltd involves a dispute between the plaintiff, Phillips, and the defendant, Tobias Partners Pty Ltd, over the construction and enforcement of an agreement for the provision of architectural services. The Local Court initially ruled in favour of the defendant, and Phillips sought leave to appeal the decision, specifically focusing on the construction of the agreement and the costs awarded. The appeal raises questions regarding the nature of the agreement as an entire obligation and whether it allowed for the staged performance of work.

The primary legal issue before the court was whether the agreement between the parties constituted an entire obligation or if it permitted the work to be performed in stages, which would entitle the plaintiff to partial payment for work completed. Additionally, the court had to consider the appropriateness of the costs awarded in the initial decision. The court was tasked with interpreting the terms of the agreement and determining whether it was an entire obligation that required complete performance or if it could be considered divisible, allowing for partial payment based on the proportion of work completed.

In its reasoning, the court examined the language of the agreement and the surrounding circumstances to ascertain the intentions of the parties. The court found that the agreement did not explicitly state that it was an entire obligation and that it could be construed to allow for staged performance, thus permitting the plaintiff to claim partial payment for the work done. The court also addressed the costs decision, determining that it was appropriate to grant leave to appeal to allow for a review of the costs awarded. The appeal was allowed, and the case was remitted to the Local Court for reconsideration of the costs.

The final orders of the court were to allow the appeal, set aside the decision of the Local Court, and remit the matter to the Local Court for reconsideration of the costs awarded. The court did not alter the substantive decision regarding the construction of the agreement but focused on the appropriateness of the costs decision, which led to the granting of leave to appeal. This decision provides clarity on the interpretation of agreements involving staged performance of work and the conditions under which leave to appeal a costs decision may be granted.

Orders